[Cite as State v. Dixon, 2015-Ohio-208.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2013-L-103 - vs - :
JAMEY D. DIXON, :
Defendant-Appellant. :
Criminal Appeal from the Willoughby Municipal Court, Case No. 13 TRC 02379 A.
Judgment: Reversed and remanded.
James R. O’Leary, Baker, Hackenberg & Hennig, 77 North St. Clair Street, #100, Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Defendant-appellant, Jamey D. Dixon, aka Peden, appeals the June 17,
2013 judgment entry of the Willoughby Municipal Court, denying her motion to
suppress. The issue before this court is whether a police officer may approach a
vehicle parked in a residential driveway without a reasonable suspicion that a crime had
occurred or was occurring or indications that the operator of the vehicle was in distress.
For the reasons that follow, we reverse and remand the judgment of the municipal court. {¶2} On March 29, 2013, Officer Nate Reed of the Village of Kirtland Hills
Police Department issued Dixon a traffic citation, charging her with Operating a Vehicle
while under the Influence (“OVI”), in violation of R.C. 4511.19(A)(1)(a) (“[n]o person
shall operate any vehicle * * * under the influence of alcohol”), and OVI, in violation of
R.C. 4511.19(A)(2) (“[n]o person who * * * previously has been convicted of or pleaded
guilty to [OVI] * * * shall do both of the following: (a) Operate any vehicle * * * while
under the influence of alcohol * * *; (b) Subsequent to being arrested for operating the
vehicle, * * * being asked by a law enforcement officer to submit to a chemical test or
tests * * *, refuse to submit to the test or tests”).
{¶3} On April 19, 2013, Dixon appeared and entered a plea of not guilty.
{¶4} On May 22, 2013, Dixon filed a motion to suppress.
{¶5} On June 12, 2013, a hearing was held on Dixon’s motion.
{¶6} On June 17, 2013, the municipal court issued a judgment entry, denying
the motion to suppress. The court made the following findings of fact:
{¶7} “3. Officer Reed testified that he was on duty and on routine patrol on
March 29, 2013 when he observed a ‘blacked out’ vehicle in a residential driveway at
8350 Kingwood Drive. Officer Reed testified that he observed one person in the
vehicle, behind the steering wheel. Officer Reed testified that he was familiar with the
family that lived at this residence and he had never seen a vehicle parked in the drive
such as the defendant was parked, some ‘65 yards’ from the residence. The time was
approximately 2:00 AM. Officer Reed explained that what he meant by a ‘blacked out’
vehicle was one which was occupied but all the lights were out.
{¶8} “4. Officer Reed testified that the area of this particular residence is in
close proximity to the intersection of Route 615 and Center Street, a high traffic area
2 compared to the other roadways in Kirtland Hills. He also had knowledge that a vehicle
had been broken into previously in this driveway; there was an attempt at unlawful
access to the house behind this residence as well as a garage in the area. Under cross
examination, the officer testified that the break-ins were not recent, but this does not
diminish the fact that he had knowledge of those incidents and that they were in this
particular area.
{¶9} “5. Officer Reed testified that based on these specific and articulable facts,
he approached the vehicle and made contact with the defendant who was the operator
and sole occupant of the vehicle. The officer exercised what he described as his
‘community caretaker function’, and believed that a criminal act may have taken place
or was occurring. His reason to approach the defendant, therefore, was to ‘… confirm
or refute his suspicion of criminal activity.’ State v. Moeller, 200[0] WL 1577287 (Ohio
Ct. App. 12th Dist. Butler County 2000), citing Terry v. Ohio, 392 U.S. 1, 21, * * *(1968).
The court finds that the state has met its burden to show the factual basis for the stop,
as the officer provided specific and articulable facts from which rational inferences could
be made to justify the intrusion.” (Parallel citations omitted.)
{¶10} On October 2, 2013, Dixon entered a plea of no contest to OVI, in violation
of R.C. 4511.19(A)(1)(a). The court imposed a fine of $675, sentenced her to 180 days
in jail (165 days suspended), suspended her license for one year, and placed her on
probation for one year. On motion of the prosecutor, the court entered a nolle prosequi
to the other OVI charge.
{¶11} On October 16, 2013, Dixon filed a notice of appeal.
3 {¶12} On October 17, 2013, the municipal court stayed execution of Dixon’s
sentence pending appeal.
{¶13} On appeal, Dixon raises the following assignment of error:
{¶14} “The trial court erred when it denied the defendant-appellant’s motion to
suppress any evidence gained as part of an unlawful seizure of the defendant-appellant,
in violation of her right to due process and to be free from unreasonable search and
seizure as guaranteed by the Fourth, Fifth, and Fourteenth Amendments of the United
States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.”
{¶15} At a suppression hearing, “the trial court is best able to decide facts and
evaluate the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-
4629, ¶41. “Its findings of fact are to be accepted if they are supported by competent,
credible evidence, and we are to independently determine whether they satisfy the
applicable legal standard.” Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, ¶8; State v. Wysin, 11th Dist. Portage No. 2013-P-0037, 2013-Ohio-5363, ¶27
“(‘(o)nce the appellate court accepts the trial court’s factual determinations, the
appellate court conducts a de novo review of the trial court’s application of the law to
these facts’) (citation omitted).”
{¶16} The Fourth Amendment to the United States Constitution provides for
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.”1 “[W]henever a police officer accosts an
individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v.
1. Article I, Section 14 of the Ohio Constitution provides as follows: “The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.” Except in certain circumstances not relevant here, the Ohio Supreme Court “has interpreted Section 14, Article I of the Ohio Constitution as affording the same protection as the Fourth Amendment.” State v. Robinette, 80 Ohio St.3d 234, 238 (1997).
4 Ohio, 392 U.S. 1, 16 (1968). “[T]he reasonableness of such seizures depends on a
balance between the public interest and the individual’s right to personal security free
from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U.S.
873, 878 (1975). An action is deemed reasonable under the Fourth Amendment where
the totality of the surrounding circumstances, viewed objectively, justifies the action.
Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (“[a]n action is ‘reasonable’ under the
Fourth Amendment * * * ‘as long as the circumstances, viewed objectively, justify (the)
action’”) (citation omitted); State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph one of
the syllabus (“[t]he propriety of an investigative stop by a police officer must be viewed
in light of the totality of the surrounding circumstances.”)
{¶17} There are two well-defined situations in which an officer’s seizure of an
individual is permissible under the Fourth Amendment: the investigatory stop and the
community-caretaking/emergency aid exception.
{¶18} “[A] law enforcement official is permitted to stop and briefly detain a
person for investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that ‘criminal activity may be afoot’ * * *.” State v. Franklin, 97 Ohio
St.3d 1, 2002-Ohio-5304, ¶11, quoting Terry at 30. “Thus, police officers are generally
permitted to approach an individual, even if they have no basis to conclude that he is
suspicious, and may ask questions of and request identification from the individual ‘as
long as the police do not convey a message that compliance with their requests is
required.’” Id., quoting Florida v. Bostick, 501 U.S. 429, 435 (1991).
{¶19} Under the community-caretaking/emergency aid exception to the Fourth
Amendment, police officers may “stop a person to render aid if they reasonably believe
that there is an immediate need for their assistance to protect life or prevent serious
5 injury.” State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, syllabus. The exception
recognizes that “local law-enforcement officers ‘frequently investigate vehicle accidents
in which there is no claim of criminal liability and engage in what, for want of a better
term, may be described as community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a criminal
statute.’” Id. at ¶17, quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973).
{¶20} As Ms. Dixon notes in her brief, Officer Reed indicated both that he was
making an investigative, Terry stop of appellant, and that he was exercising his
community-caretaking function. In either case, the facts did not justify him in
approaching and questioning appellant, simply because she was stopped on a private
driveway at night.
{¶21} If this was a Terry stop, then the opinion in United States v. See, 574 F.3d
309 (6th Cir.2009), is instructive. In that case, the Northern District of Ohio found a
Terry stop justified, and denied a motion to suppress, when Officer Williams of the
Cuyahoga County Metropolitan Housing Authority, stopped a parked car in the early
morning hours at a housing project. Id. at 311. On appeal, the Sixth Circuit reversed.
Id. In relevant part, the court found:
{¶22} “We conclude that this Terry stop was not supported by reasonable
suspicion. The district court listed the following reasons to support its finding that
Williams had reasonable suspicion: (1) it was 4:30 a.m.; (2) the men were parked in a
high-crime area; (3) before beginning his shift, Williams had been instructed to pay
special attention to non-resident loiterers because of a recent increase in robberies; (4)
there were three men in the car; (5) the car's interior light was off; (6) the car was
parked away from the apartment building in a dim portion of the lot; and (7) the car did
6 not have a front license plate. Williams' testimony does not provide any additional
justifications. Although the fact that the encounter occurred in a high-crime area is
relevant, ‘(a)n individual’s presence in an area of expected criminal activity, standing
alone, is not enough to support a reasonable, particularized suspicion that the person is
committing a crime.’ Illinois v. Wardlow, 528 U.S. 119, 124, * * * (2000); see also United
States v. Caruthers, 458 F.3d 459, 467-68 (6th Cir. 2006). Similarly, the time of day is
relevant, but the fact that it was very early in the morning does not alone provide
reasonable suspicion. Caruthers, 458 F.3d at 467-68. The first three factors cited by
the district court are context-based factors that would have pertained to anyone in the
parking lot at that time and should not be given undue weight.
{¶23} “Nor did the remaining factors provide Williams with reasonable suspicion
to conduct a Terry search (although he could, of course, have pursued a consensual
encounter with the occupants of the car). At the time that he parked his patrol car in
front of See’s car, Williams was not responding to a complaint, he did not suspect the
men of a specific crime, he had not seen the men sitting in the car for an extended
period of time, he was not acting on a tip, he had not seen the men do anything
suspicious, and the men did not try to flee upon seeing Williams approach. Even if we
assume that Williams noticed that the car did not have a front license plate before he
parked in front of See’s car, this fact does not provide reasonable suspicion because, as
Williams explained, temporary tags are issued for only the back of the car. Accordingly,
the fact that the car did not have a front license plate did not indicate a traffic infraction,
and Williams and the government never explain how the lack of a front license plate
would otherwise raise reasonable suspicion. Apart from the contextual factors of time
and the high-crime status of the area, all that Williams knew at the time he parked his
7 car was that there were three men in an unlit car in the parking lot of a housing complex
and that they had not chosen to park in one of the spots closer to the building.
Considering the totality of the circumstances, Williams did not have reasonable
suspicion that criminal activity was occurring, and the Terry stop was therefore
improper.” Id. at 313-314. (Parallel citations omitted.)
{¶24} In this case, Officer Reed based his decision to make a stop solely on the
facts that some crimes had occurred in the area; that he had not seen a car parked in
the driveway of the house earlier, that he had not seen a car parked at that particular
point in the driveway before; and, that its lights were off. The area was not a high crime
area; the officer was not responding to a call; he had no suspicion of any traffic
infraction or any other criminal activity. In fact, his testimony indicates he did not even
know the vehicle was occupied, until he turned his floodlight on it. Ms. Dixon did not
attempt to flee. A Terry stop was unjustified.
{¶25} If this was a community caretaking stop, again, the facts do not justify the
intrusion. As the Supreme Court of Ohio held in Dunn, supra: “The community-
caretaking/emergency-aid exception to the Fourth Amendment warrant requirement
allows police officers to stop a person to render aid if they reasonably believe that there
is an immediate need for their assistance to protect life or prevent serious injury.” In this
case, no evidence indicates that Officer Reed had any reason to believe Ms. Dixon was
in any imminent harm.
{¶26} The sole assignment of error has merit.
8 {¶27} For the foregoing reasons, the judgment of the Willoughby Municipal Court
is reversed and this matter is remanded for further proceedings consistent with this
opinion.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
_________________
Timothy P. Cannon, P.J., concurring.
{¶28} I concur with the majority’s decision to reverse the judgment of the trial
court, which denied appellant’s motion to suppress. I write separately to further address
a few points of analysis.
{¶29} First, the dissent states that “Officer Reed’s estimation of his own conduct
[as ‘an investigative, Terry stop’] is not material to the issue of its reasonableness. * * *
[A]n officer’s ‘subjective intent is irrelevant to determining the type of intrusion that
occurred.’” Infra at fn. 1. However, it is undisputed that a seizure occurred here.
Officer Reed pulled behind the vehicle and activated his lights. The state of Ohio
conceded Ms. Dixon was not free to leave at that point.
{¶30} Second, in support of his seizure of the vehicle, Officer Reed contends he
had just passed that drive minutes before and the vehicle was not there. He also
testified that Ms. Dixon’s vehicle was parked in a driveway near a freeway interchange.
However, these facts are consistent with many perfectly legal reasons why anyone may
have pulled into the driveway—e.g., place a phone call, check directions on a GPS, or
send a text message—activities that are safer to perform when not driving. Although
9 Officer Reed could have observed the vehicle for a period of time to see whether Ms.
Dixon may have been performing one of these tasks, he instead made an immediate
seizure of the vehicle. Under these facts and circumstances, Officer Reed seized Ms.
Dixon before he could have formed a reasonable suspicion of criminal activity.
{¶31} Third, Officer Reed identified that something was possibly amiss when he
saw Ms. Dixon’s car parked at the bottom of a driveway. However, the fact that he may
have acted in good faith is simply not enough: “[i]f subjective good faith alone were the
test, the protections of the Fourth Amendment would evaporate, and the people would
be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the
police.” Beck v. Ohio, 379 U.S. 89, 97 (1964). There is no doubt that Officer Reed
could have pursued a consensual encounter with Ms. Dixon, as it is well settled that
“law enforcement officers do not violate the Fourth Amendment by merely approaching
an individual on the street or in another public place, by asking him if he is willing to
answer some questions[.]” Florida v. Royer, 460 U.S. 491, 497 (1983). However, as
previously stated, the state of Ohio and Officer Reed concede that this was not a
consensual encounter.
{¶32} I concur with the majority’s holding that Ms. Dixon’s motion to suppress
should have been granted.
____________________
{¶33} In the present case, the majority reverses the decision of the lower court
on the grounds that Officer Reed’s conduct did not constitute a Terry stop. I must
respectfully dissent. The Terry stop is not the only permissible type of encounter
10 between law enforcement and private citizens. By trying to straightjacket the facts of
the present case to a Terry stop, the majority loses sight of the essence of Fourth
Amendment jurisprudence – that the people are to be secure against “unreasonable
searches and seizures.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37
L.Ed.2d 706 (1973) (“ultimate standard set forth in the Fourth Amendment is
reasonableness”); State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d
1037, ¶ 17 (“the Fourth Amendment protects citizens from only unreasonable
government searches and seizures”) (emphasis sic).
{¶34} The question in the present case, then, is not whether Officer Reed’s
conduct constituted a valid Terry stop, but whether it was reasonable in light of the
circumstances. Properly framed, the question can only be answered affirmatively, and
the lower court’s judgment affirmed.2
{¶35} The nature of Officer Reed’s intrusion with regard to Dixon’s Fourth
Amendment rights must be made clear. A Terry stop is a warrantless stop (or seizure)
and subsequent frisk (or search) of a person whom the officer lacks probable cause to
arrest. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
{¶36} At the time of the initial encounter in the present case, Officer Reed had
not stopped Dixon’s vehicle, restrained her from leaving the scene, or conducted any
type of search. Officer Reed observed Dixon’s vehicle parked, with its lights out, at the
end of a driveway to a private residence, between 65 and 70 yards away from the
2. The majority notes that Officer Reed characterized his own conduct as “an investigative, Terry stop.” Supra at ¶ 20. Officer Reed’s estimation of his conduct, however, is not material to the issue of its reasonableness. It is fundamental in Fourth Amendment jurisprudence that an officer’s “subjective intent is irrelevant to determining the type of intrusion that occurred.” State v. Gill, 11th Dist. Ashtabula No. 2014-A-0014, 2014-Ohio-4309, ¶ 20. Rather, “[t]he standard for determining the propriety of an officer’s actions during an investigatory stop is objective in nature.” Id. at ¶ 19; Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (rejecting the argument that “the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved”).
11 house, in the early morning hours. There had been a prior incident involving the break-
in of a vehicle at this address and an attempted home invasion at an adjoining
residence. Officer Reed stopped his patrol car and approached Dixon’s vehicle on foot.
Upon speaking with Dixon, Officer Reed had reason to believe that Dixon was
intoxicated and ordered her out of the vehicle to conduct field sobriety tests.
{¶37} The concurring opinion acknowledges that Officer Reed had reason to
believe “something was possibly amiss,” but concludes there was no “reasonable
suspicion of criminal activity.” Supra at 31. The circumstances of this case do not
support such a distinction between criminal activity and something being amiss. That
fact that innocent explanations of Dixon’s conduct exist is immaterial – innocent
explanations are always possible. But to speculate that Dixon may have pulled off the
interstate to park at the end of a residential driveway at two in the morning to send a
text message is not reasonable or logical.
{¶38} The majority concludes that “[a] Terry stop was unjustified.” Supra at ¶ 24.
Given the fact that Officer Reed did not conduct a Terry stop, this conclusion is not
justification for reversing the lower court. A fair assessment of Officer Reed’s conduct is
that this was essentially a consensual encounter in a public space.3 This court has
recognized, and repeatedly affirmed, that such conduct does not violate the Fourth
Amendment. State v. Phipps, 11th Dist. Portage No. 2006-P-0098, 2007-Ohio-3842, ¶
19 (“the act of a police officer approaching an individual in a parked vehicle and asking
him questions does not constitute a ‘seizure’ for the purposes of the Fourth
3. On the character of the driveway for Fourth Amendment purposes, see United States v. Galaviz, 645 F.3d 347, 356 (6th Cir.2011) (“police officers needed no warrant to enter onto the portion of the driveway [outside the curtilage]”); State v. Mitchem, 1st Dist. Hamilton No. C-130351, 2014-Ohio-2366, ¶ 16 (“the driveway was not part of the home’s curtilage, but instead constituted a public place”); State v. Swonger, 10th Dist. Franklin No. 09AP-1166, 2010-Ohio-4995, ¶ 15 (“the porch of a residence [not within the curtilage] has been held to be a public place for purposes of Fourth Amendment analysis”) (cases cited).
12 Amendment”) (cases cited); State v. Regulus, 2013-Ohio-507, 986 N.E.2d 1105, ¶ 14
(2nd Dist.); State v. Calhoun, 11th Dist. Ashtabula No. 2010-A-0057, 2012-Ohio-1128, ¶
96.
{¶39} Moreover, such conduct is reasonable in light of the facts of this case:
prior break-ins at the same and adjoining addresses4; the sudden appearance of the car
parked suspiciously at the far end of a long driveway; and the late hour of the night. In
Terry, the United States Supreme Court rejected a “rigid all-or-nothing model of
justification and regulation under the [Fourth] Amendment,” recognizing, instead, that
“the central inquiry under the Fourth Amendment [is] the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s personal security.”
Terry, 392 U.S. at 17-19, 88 S.Ct. 1868, 20 L.Ed.2d 889. The court concluded that “[i]t
would have been poor police work indeed for an officer of 30 years’ experience in the
detection of thievery from stores in this same neighborhood to have failed to investigate
this behavior further.” Id. at 23.
{¶40} It would have been just as poor police work for Officer Reed to have failed
to investigate further in the present case, while his decision to investigate is no less
constitutional.
4. The majority obscures the fact that criminal activity had occurred at this same address, glossing Officer Reed’s testimony as “some crimes had occurred in the area.”